Pushpa Devi Agarwal vs National Insurance Co Ltd

-THIS appeal has been filed by the appellant under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''1986 Act'') against the order dated 4. 8. 2004 passed by the learned District Forum, Udaipur in C. C. No. 420/1998 whereby the complaint of the complainant-appellant was dismissed.

THE brief facts giving rise to this appeal are that the complainant-appellant got her new Mini Truck No. RJ 27g 3874 insured comprehensively for a sum of Rs. 3. 50 lacs for the period from 28. 10. 1997 to 27. 12. 1997. During the insured period, the said truck met with an accident on 29. 12. 1997 sustaining heavy damages. It was driven by a duly licensed driver Mr. Shyam Sunder Bansal, O. P. 2. The complainant informedthe Insurance Company and the Insurance Company appointed Mr. Suresh Kumar Gwala for conducting spot survey on the next day of accident. Later, the Insurance Company appointed Mr. Yogesh Dutt for conducting Final Survey. In spite of this, the respondent Insurance Company did not pay the insurance claim to the complainant and repudiated the claim of the complainant on 26. 8. 1998 on the ground that according to their Investigator Dr. Qureshi, the insured vehicle was not driven by Shri Shyam Sunder Bansal but someone else and that the complainant has concealed important facts of the case. In these circumstances, the complainant filed a complaint in the Forum below claiming damages of Rs. 3. 50 lacs for the damage to her truck and other compensation. The appellant also prayed that if the Insurance Company thinks that the appellant had violated any condition of the policy, then it could pay her the insurance claim on-sub standard basis. In the reply to the complaint, the first respondent admitted that the Surveyor appointed by it had assessed the loss to the insured vehicle but refused to accept the claim of the complainant on the grounds mentioned in its letter of repudiation dated 26. 8. 1998, referred to above.

The respondent O. P. 2 also filed a reply and admitted that he was driving the insured vehicle in question at the time of accident and he holds a valid driving licence which was valid up to 3. 11. 2000.

AFTER hearing both the parties, the learned District Forum dismissed the complaint holding that the O. P. 2 Shri Shyam Sunder Bansal was not driving the vehicle in question at the time of accident, and that the complainant has not been able to prove as to who was her driver and as such the Insurance Company has not committed and deficiency in service by repudiating the insurance claim of the complainant. Aggrieved by this order of the learned District Forum, the appellant-complainant has come up before us in appeal.

WE have heard the learned Counsel for the parties at length, perused the impugned order and considered the materials placed on record. The learned Counsel for the appellant, Mr. Jhaveria, has contended that the learned District Forum has committed a serious error in passing the impugned order insofar as it failed to appreciate the evidence produced by the complainant in its right perspective, and at the same time, the learned District Forum had wrongly relied upon the evidence of the respondent-O. P. 1 and as such the impugned order deserves to be quashed. The learned Counsel for the respondent Insurance Company, Mr. Ram Kalyan Sharma, on the other hand, vehemently argued that the truck was driven by some unknown person who presumably had no driving licence and in such circumstances he sought to justify the impugned order.

IN this case, it is not in dispute that the mini truck of the complainant was insured by the respondent-O. P. 1 for a sum of Rs. 3. 50 lacs and during the period of insurance, the truck had met with an accident.

IT is also not in dispute that on the next day of the accident, the Spot Surveyor appointed by the Insurance Company had conducted the inspection and given his Spot Survey Report on 30. 12. 1997 itself indicating the extensive damages sustained to the insured truck. It is also not in dispute that the Final Surveyor, Shri Yogesh Dutt, appointed by the Insurance Company also found extensive damages to the vehicle in question and in his detailed report dated 19. 1. 1998, assessed total loss as Rs. 3,10,000 and cash loss assessment of Rs. 1,40,670. He also assessed net loss at Rs. 1,33,500 on the basis of consent obtained by the complainant.

It is also not in dispute that the complainant was even prepared to take her insurance claim taking the claim to the ''sub-Standard''.

IT is also not in dispute that as there was no T. P. loss or major injuries involved in the accident, as also admitted by the Final Surveyor, the incident was not reported to the Police Station. In the facts narrated above, the only dispute in this case is whether the complainant-appellant has been able to prove that the insured vehicle was being driven by O. P. 2 Shri Shyam Sunder Bansal at the time of accident or by some other person who had no driving licence.

IN this case, the complainant had submitted an affidavit in support of her complaint. Shri Shyam Sunder Bansal, O. P. 2 had admitted in the reply to the complaint that he was driving the insured vehicle at the time of the accident and he had a valid licence which was effective upto 3. 11. 2000. He has also produced his affidavit dated 12. 5. 1998 wherein he had deposed on oath that he was driving the insured vehicle at the time of the accident. The Final Surveyor Shri Yogesh Dutt had also indicated that the D. L. No. of Shri Shyam Sunder was 45107 which was issued on 4. 11. 1985 by Licensing Authority, Udaipur to drive L. T. V. , H. T. V. and P. S. V. and was valid upto 3. 11. 2000, and that Badge was out of stock. The respondent Insurance Company has not rebutted the fact of possession of valid driving licence by Shri Shyam Sunder Bansal.

APART from it, there is evidence on record that the insured vehicle was transporting the goods of M/s. Mukesh Kumar Suresh Kumar, Udaipur in the insured truck. The owner of the goods had issued Challan No. 2093 dated 28. 12. 1997 for transporting the goods. The said challan mentions the fact that the goods were being transported in truck No. RJ 27g 3874 and its driver was Shri Shyam Sunder. The Insurance Company has neither challenged this document nor has rebutted it. It is not the case of the Insurance Company that this challan is a forged document or was prepared in connivance with the complainant. As such, this document also fortifies the conclusion that the driver of the insured truck at the time of accident was none other than Shri Shyam Sunder Bansal. The learned District Forum has not considered this important document which has resulted in serious miscarriage of justice and has vitiated the impugned order.

IN view of the above, the complainant has proved by cogent evidence that her driver was Shri Shyam Sunder Bansal at the time of accident and that he had a valid and effective licence to drive HTV. In this case, the respondent Insurance Company has taken a specific plea that the vehicle in question was not driven by the aforesaid Shri Shyam Sunder Bansal, although it has not disclosed as to who was the driver of the vehicle. In our view, once the complainant has made a prima facie case in her favour, the burden of proof to prove these allegations or the defence shifts on the respondent Insurance Company.

To discharge this onus, the respondent Insurance Company has relied upon the report dated 24th March, 1998, of Dr. Qureshi, Investigator appointed by it after receipt of the reports of the Spot Surveyor and also of Final Surveyor.

IN this report the investigator has stated that he had made inquiries to ascertain as to who was the driver of the insured vehicle and noted that the complainant and her husband had informed him that the driver of the vehicle at the time of the accident was Shri Shyam Sunder Bansal. The Investigator also admitted that he met the said Shri Bansal who informed him that he was the driver of the vehicle in question at the time of the accident. The Investigator, however, found that there were contradictions in the statement given to him by the said Mr. Bansal and the intimation letter and claim form submitted by the complainant. These contradictions related to the fact of contents of the insured vehicle at the time of accident, the city to which it was going and the nature of the accident. He also noted that as Shri Bansal was working as a RTO agent, it cannot be believed that he was driving the vehicle from Udaipur to Ajmer. In these circumstances, the Investigator was of the opinion that Shri Bansal was not at all driving the vehicle. He also stated that he is trying to find out the identity of the actual driver of the vehicle.

NO further report of this Investigator has, however, been placed on record by the respondent Insurance Company, nor is it claimed that the Investigator had not submitted any report in the matter. There is evidence on record that the contradiction relied upon by the Investigator were explained by the respondent-O. P. 2 in his affidavit dated 12. 5. 1998. There is more than one reason for rejecting this investigation report. Firstly, as stated above, it is incomplete report and further report, if any, of the Investigator had neither been placed on record in the Forum below nor before this Commission. As such, the respondents and the Forum below should not have acted upon this half cooked report of the Investigator. The investigation report dated 24. 3. 1998 is marked as ''confidential'' and was sent by the Investigator to the respondent-O. P. 1. Before acting on this report and repudiating the claim of the complainant, the complainant was not informed of this report and as such the respondent Insurance Company had not given any opportunity of explaining the matter to the complainant. In this way, the respondent had not followed the principles of natural justice in this regard.

THE respondent has not submitted any supporting affidavit to prove the Investigation report and other documents enclosed with such a report. The necessity to file supporting affidavit was considered by the Hon''ble National Commission in United India Insurance Co. Ltd. v. Dashrathlal Jethabai Patel, II (1996) CPJ 77 (NC ). In that case, the allegation was that the private car was carrying passengers at the time of accident and that fact was investigated by the Investigator. The Hon''ble National Commission held that this allegation should not have been accepted without a supporting affidavit from the person who investigated the fact. The present case is also squarely covered by the above observations and as such in the absence of the supporting affidavit the learned District Forum has erroneously relied on it.

AS stated above, there is evidence on record that the contradiction in the alleged statement given to the Investigator by the driver-O. P. 2 was explained by the respondent-O. P. 2 to O. P. 1 in his affidavit dated 12. 5. 1998, but there is nothing on record whether or not the respondent-O. P. 1 had considered the explaination given by the driver. For the reasons stated above, it is clear that the learned District Forum has erroneously relied upon the report of the Investigator. If the Investigation report is excluded, there is no other evidence on record to prove that the insured vehicle was driven by some unknown person and that he had no valid and effective driving licence.

In our considered opinion, the complainant has been able to prove that the insured truck was being driven by Shri Shyam Sunder Bansal at the time of the accident and that he had a valid and effective driving licence. In this view of the matter, the conclusion arrived at by the learned District Forum suffers from manifest error and mis-appreciation of the evidence on record.

DURING the course of argument, Mr. Ram Kalyan Sharma, the learned Counsel for the respondents had cited many rulings on driving licence of the drivers of insured vehicles. A few rulings produced by him lay down that a person having a licence to drive LMV cannot drive transport vehicle, while in another citation the question was whether the license held by the driver was a genuine one or fake. I (2008) CPJ 1 (SC)=ix (2007) SLT 841=i (2008) ACC 54 (SC), III (2003) CPJ 99 (NC), I (2004) CPJ 25 (NC), IV (2007) CPJ 1. In another citation relied upon by him, the question was about the validity of a driving licence which had expired 32 days before the accident and was not renewed. [ii (2004) CPJ 57 (NC), I (2001) CPJ 25 (NC), II (2006) CPJ 309 (NC)] There is hardly any dispute relating to the legal position adverted to in these citations but the question is whether at all they are applicable to the facts of the present case.

IN the present case, it is no body''s case that the driver of the insured vehicle was having a licence to drive LMV only while the insured vehicle was HTV. The respondent Insurance Company has not repudiated the claim of the complainant on this ground. Therefore, the citations produced by the learned Counsel for the respondent-O. P. 1 is only academic in nature and are not relevant to the facts of this case. Again, it is not the case of the respondent Insurance Company that the licence possessed by the unknown driver of the insured truck of the complainant was a fake one. Again, it is not the case of the respondent Insurance Company that the driving licence of the driver of the insured vehicle had expired and he did not get it renewed.

IT is also not the case of either party that the alleged driver of the vehicle Shri Shyam Sunder Bansal had no valid and effective licence. On the other hand, as concluded above, the said Shri Bansal had a valid and effective licence to drive transport vehicle. Therefore, the other citations relied upon by the learned Counsel for the respondent Insurance Company are also not applicable to the present case and are irrelevant for the purpose of adjudication of the dispute between the parties.

FOR the aforesaid reasons, we are of the considered opinion, that the repudiation of the insurance claim by the respondent Insurance Company is arbitrary and unwarranted and the complainant is entitled to receive compensation under the policy of insurance. On the point of compensation: In this case, there is no dispute that the final Surveyor Shri Yogesh Dutt had assessed the loss on Net Loss Basis Assessment at Rs. 1,33,500 and according to the Surveyor, the complainant had consented to this assessment. In this case, the learned Counsel for the appellant had consented to the claim being treated as sub standard and consequently the loss would be reduced by 75% of the loss assessed, i. e. , Rs. 1,33,500 33,575 = Rs. 99,525. Looking to the fact that the damaged truck is still with the complainant and the matter pertains to the year 1998 and the truck is reported to be sold out by the complainant, it would subserve the ends of justice if the respondent Insurance Company - O. P. 1 pays to the appellant-complainant a sum of Rs. 99,525, together with interest @ 9% p. a. with effect from the date of presentation of the complaint in the Forum below.

For the aforesaid reasons, in our considered opinion, the appeal deserves to be allowed.

ACCORDINGLY, this appeal filed by the appellant-complainant is allowed, the impugned order dated 4. 8. 2004 passed by the learned District Forum, Udaipur is quashed and set aside and the complaint is allowed in the following manner: 1. The respondent-O. P. 1 Insurance Company shall pay to the appellant complainant an amount of Rs. 99,525 together with interest @ 9% per annum from the date of presentation of the complaint, i. e. , from 8. 10. 1998, till payment, on account of damages to the insured truck. 2. The respondent-O. P. 1 Insurance Company shall also pay to the appellant complainant an amount of Rs. 5,000 as litigation expenses within a period of one month from the date of this judgment. Appeal allowed.